# Babbu (In Jail) v. State of U.P

- **Citation:** (2020) 10 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-07
- **Case number:** Crl. Misc. Bail Application No. 29346 of 2020
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babbu-in-jail-v-state-of-u-p-45187
- **Pages:** 4

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Sections 274, 275, 420 & Drugs and
Cosmetic Act, 1940 - Sections 18(a)(i),
27-application-allowed-section 27 of the
Act would not be attracted-in order to fall
within the ambit of this section the
accused must manufacture the drugs for
sale or stock or exhibit for sale or
distribute for the same -there is no
evidence to show that he applicant had
any shop or that he was a distributing
agent -all that has been shown that two
bags containing the blood have been
recovered
from
the
diggy
of
the
motorcycle, the same was neither sent for
the chemical examination nor the bar code
of
the
blood
was
scanned
by
the
police.(Para 3,4,5)

The application is allowed. (E-6)

List of Cases Cited:-

## Text

10 All. Babbu Vs. State of U.P.
271

10.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

11. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.
----------
(2020)10ILR A271
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2020

BEFORE
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. Bail Application No. 29346 of 2020

Babbu ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Shiv Bahadur Singh, Sri Rajendra Singh

Counsel for the Opposite Party:
A.G.A., Sri Nafis Ahmad, Sri Devendra
Kumar Singh, Sri Sanjay Kumar Yadav

A. Criminal Law - Indian Penal Code, 1860
- Sections 274, 275, 420 & Drugs and
Cosmetic Act, 1940 - Sections 18(a)(i),
27-application-allowed-section 27 of the
Act would not be attracted-in order to fall
within the ambit of this section the
accused must manufacture the drugs for
sale or stock or exhibit for sale or
distribute for the same -there is no
evidence to show that he applicant had
any shop or that he was a distributing
agent -all that has been shown that two
bags containing the blood have been
recovered
from
the
diggy
of
the
motorcycle, the same was neither sent for
the chemical examination nor the bar code
of
the
blood
was
scanned
by
the
police.(Para 3,4,5)

The application is allowed. (E-6)

List of Cases Cited:-

1. Md. Shabir Vs St. of Mah. (1979) AIR 564,
(1979) SCR (2) 997

2. Dataram Singh Vs St. of U.P. & anr. (2018) 3
SCC 22

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Heard Sri Shiv Bahadur Singh,
learned counsel for the applicant, Sri Nafis
Ahmad, Sri Devendra Kumar Singh, Sri
Sanjay Kumar Yadav, learned A.G.A. for
the State and perused the material brought
on record.

2. The present bail application has
been filed on behalf of the applicant Babbu
with a prayer to release him on bail in Case
Crime No. 122 of 2020, under Sections
274, 275, 420 IPC and section 18(a)(i) and
section 27 of Drugs and Cosmetics Act,
1940, Police Station- Chandauli, District
Chandauli during pendency of trial.

3. The contention of learned counsel
for the applicant is that no offence under
sections 274, 275, 420 IPC, section 18(a)(i)
and 27 of Drugs and Cosmetic Act, 1940 is
made out against the applicant. Further
submission advanced by learned counsel
for the applicant is that two bags containing
the blood have been recovered from the
diggy of the motorcycle, the same was
neither sent for the chemical examination
nor the bar code of the blood was scanned
by the police. Lastly argued that the
applicant is innocent and has falsely been
implicated in this case as there is no
evidence to show that the applicant had any
shop or he was a distributing agent or he
was going to sell it, hence section 27 of the
272 INDIAN LAW REPORTS ALLAHABAD SERIES
Act would not be attracted. The applicant is
in jail since 4.7.2020.

4. Learned counsel for the applicant
has also placed reliance upon the judgment
given by the Apex Court in Mohd. Shabir
Vs. State of Maharashtra reported in
1979 AIR 564, 1979 SCR (2) 997 in which
it has been held as under :-

"Mr. U. P. Singh appearing in
support of the appeal has raised a short
point before us. He has submitted that
taking the prosecution case at its face
value, no offence can be said to have been
committed under section 27 (a) (i) or (ii) of
the Act. It was submitted that the
ingredients required by section 27 have not
been proved in this case and therefore,
even if, the accused pleaded guilty, that will
not enable the prosecution to convict him
on his plea of guilty. Section 18 (c) runs
thus :

"manufacture for sale, or sell, or
stock or exhibit for sale, or distribute any
drug or cosmetic, except under, and in
accordance with the conditions of, a
licence issued for such purpose under this
Chapter."

Section 27 is the penal section
under which the offence is punishable and
this section runs thus:

"Whoever himself or by any other
person on his behalf manufactures for sale,
sells, stocks or exhibits for sale or
distributes-(a) any drug-

(i) deemed to be misbranded
under clause (a), clause (b), clause (e),
clause (d), clause

(f) or clause (g) of section 17 or
adulterated under section 17B; or

(ii) without a valid licence as
required under clause (c) of section 18."

shall
be
punishable
with
imprisonment for a term which shall not be
less than one year but which may extend to
ten years and shall also be liable to fine;
Provided that the Court may, for any
special reasons to be recorded in writing
impose a sentence of imprisonment of less
than one year;"

It was contended by Mr. Singh
that in order to fall within the, ambit of this
section the accused must manufacture the
drugs for sale or stock or exhibit for sale or
distribute the same. There is no evidence in
this case to show that the appellant had any
shop or that he was a distributing agent.
All that has been shown is that the tablets
concerned
were
recovered
from
his
possession. It was urged that possession
simpliciter of the tablets of any quantity
whatsoever would not fall within the
mischief of section 27 of the Act. On an
interpretation of section 27, it seems to us
that the arguments of Mr. Singh is well
founded and must prevail. The words used
in section 27, namely, "manufacture for
sale", sells, have a comma after each
clause but there is no comma after the
clause "stocks or exhibits for sale". Thus
the
section
postulate
three
separate
categories of cases and no other. (1)
manufacture for sale; (2) actual sale; (3)
stocking
or
exhibiting
for
sale
or
distribution of any drugs. The absence of
any comma after the word "stocks" clearly
indicates that the clause "stocks or exhibits
for sale" is one indivisible whole and it
contemplates not merely stocking the drugs
but stocking the drugs for the purpose of
sale and unless all the ingredients of this
category are satisfied, section 27 of the Act
would not be attracted. In the present case
there is no evidence to show that the
appellant had either got these tablets for
sale or was selling them or had stocked
them for sale. Mr. Khanna appearing for
the State, however, contended that the word
"stock" used in section is wide enough to
10 All. Babbu Vs. State of U.P.
273
include the possession of a person with the
tablets and where such a person is in the
possession of tablets of a very huge
quantity, a presumption should be drawn
that they were meant for sale or for
distribution. In our opinion, the contention
is wholly untenable and must be rejected.
The inter pretation sought to be placed by
Shri Khanna does not flow from a true and
proper interpretation of section 27. We,
therefore, hold that before a person can be
liable for prosecution or conviction under
section 27 (a) (i) (ii) read with section 18
(c) of the Act, it must be proved by the
prosecution affirmatively that he was
manufacturing the drugs for sale or was
selling the same or had stocked them or
exhibited the articles for
sale. The
possession simpliciter of the articles does
not appear to be punishable under any of
the provisions of the Act. If, therefore, the
essential ingredients of section 27 are not
satisfied the plea of guilty cannot lead the
Court to convict the appellant.

As regards the second charge, it
seems to us that the case of the appellant is
clearly covered by the language contained in
section 18A read with section 28. Section 18A
runs thus:

"Every person, not being the
manufacturer of a drug or cosmetic or his agent
for the distribution thereof, shall, if so required,
disclose to the Inspector the same, address and
other particulars of the person from whom he
acquired the drug or cosmetic."

Section
28
which
makes
no
disclosure of 18A punishable reads thus:

"Whoever contravenes the provisions
of section 18A shall be punishable with
imprisonment for a term which may extend to
one year, or with fine which may extend to five
hundred rupees, or with both."

5. Considering the facts, circumstances of
the case, submission made by learned counsel
for the applicant, learned A.G.A. and from
perusal of the material available on record,
larger mandate of the Article 21 of the
Constitution of India and the dictum of Apex
Court in the case of Dataram Singh Vs. State
of U.P. and another, reported in (2018) 3
SCC 22 and without expressing any opinion on
the merits of the case, let the applicant involved
in the aforesaid crime be released on bail on his
furnishing a personal bond and two sureties
each in the like amount to the satisfaction of the
court concerned with the following conditions
that :-

1. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/ pressurizing the witnesses,
during the investigation or trial.

2. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

3. The applicant shall not indulge
in any criminal activity or commission of
any crime after being released on bail.

4. In case the applicant has been
enlarged on short term bail as per the order
of committee constituted under the orders
of Hon'ble Supreme Court his bail shall be
effective after the period of short-term bail
comes to an end.

5. The applicant shall be enlarged
on bail on execution of personal bond
without sureties till normal functioning of
the courts is restored. The accused will
furnish sureties to the satisfaction of the
court below within a month after normal
functioning of the courts are restored.

6. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

7.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
274 INDIAN LAW REPORTS ALLAHABAD SERIES
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

6. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.
----------
(2020)10ILR A274
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2020

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Misc. Writ Petition No. 6539 of 2020

Rama Shankar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dheeraj Kumar Dwivedi, Sri K.K.
Tripathi

Counsel for the Respondents:
G.A./A.G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 164 - Petition
seeking
Fair
investigation-despite
statements of the victim u/s164 Cr.P.C.
alleging
gang
rape
and
prima
facie
medical opinion indicating sexual assaultPolice gave a clean chit to accusedRemand Magistrate mechanically took
cognizance of offence u/s 323, 504, 506
IPC only and not u/s 376 D-impugned
order of cognizance quashed-disciplinary
enquiry against I.O.s and C.O. directed.

Held,
Once
a
police
report
disclosing
commission of a cognizable offence is placed
before the Magistrate the latter assumes
jurisdiction to take cognizance under Section
190 Cr.P.C. At the stage of Section 190 of the
Code, the Magistrate has a very important role
to play i.e. he has to take cognizance of the
offence on the basis of materials collected
during 10 investigation. The word "cognizance"
is not a word of semantics alone, rather it
connotes judicial application of mind so as to
enable the Magistrate to ascertain as to what
offences are disclosed on the basis of materials
collected during investigation forming part of
the police report. This is a provision of immense
importance which somehow seems to have been
lightly ignored resulting in casual / mechanical
acceptance of police reports. We do not intend
that a Magistrate should pass a detailed /
reasoned order but what we expect from them
is that they should exercise due diligence and
apply their judicial mind as to what offences are
made out on the basis of materials collected
during investigation since ultimately he has to
take cognizance of the offence not of offender.
para 10(i)) (E-9)

List of Cases cited:

1.Sakiri Vasu Vs St. of U.P. & ors. (2008) 2 SCC
409

2.Sudhir
Bhaskarrao
Tambe
Vs
Hemant,
Yashwant Dhage & ors., (2016) 6 SCC 277

3. Abhinandan Jha and Others Vs Dinesh 11
Mishra, AIR 1968 SC 117

(Delivered by Hon'ble Pankaj Naqvi, J.
& Hon'ble Sanjay Kumar Pachori, J.)

Heard Sri Dheeraj Kumar Dwivedi,
learned counsel for the petitioners, Sri Shiv
Kumar Pal, the learned Government
Advocate assisted by Sri Gambhir Singh /
Sri Deepak Mishra, the learned AGA's.

This is informant's petition under
Article 226 of the Constitution of India
seeking fair investigation in Case Crime
No.1070/2019,
under
Sections
452/323/504/506
IPC,
P.S.
Meja,
Prayagraj.

We are pained and anguished to
brazen abdication of the duties of police in
conducting investigation in a sensitive